Is this garden leave??***Resolved***

[andyasw]

My GP has said I'm fit to return to work and has signed a sick note to this effect, but my employer's OH doctor recommends my employer commissions a report from a neuro psychologist prior to any return.

 

As I'm fit to return I do not believe I should have to take any delay as annual leave and it can't be classed as sick leave, as I'm considered fit to work. What is the solution? Would this be "garden" leave?

[unclebulgaria67]

Have they said it will be annual leave ?

 

Normally in this situation, a company will just pay you as normal similar to garden leave and you return to work when the employers OH are satisfied that you are safe to return to work. The reason it would not be annual leave, is that from a health and wellbeing point of view it would not be sensible or good practice to see your holiday time eaten up. You will need leave time during the year, so you have opportunity to recharge your batteries during the working year.

 

Suggest you contact your employers line manager to discuss and obtain written confirmation of the exact position.

Edited April 25, 2018 by dx100uk
quote

[Emmzzi]

"garden leave" is when you are not working yoru notice but need to be available

 

this is "medical suspension" and most organisations would resume wages

[stu007]

Check in your Employment Contract for anything on Sicknesss/illness/Capability also check the Company Employees Handbook if they have one.

 

Are they using their Capability Policy???

 

1. When did you start employment with this Company?

 

2. How long have you been Employed with this Company to date?

[andyasw]

So far HR haven't defined on what basis this period will be. I've been continuously employed with them for 20 years.

[ericsbrother]

are you currently being paid sick leave? if so i wouldnt expect that to change. If not then it can be read as you are currently suspended pending the outcome of a medical and they should pay you as they would be obliged to do so for any other reason.

[andyasw]

As it's the Easter weekend it's too soon for HR to have communicated with me so unable to respond with any detail. I hope to be hearing something this next week so shall post HRs response.

[ericsbrother]

so you dont know if you are currently being paid then?

[andyasw]

I should be on full pay until mid April.

[ericsbrother]

the it will continue until they have done their deliberations. If they then refuse to let you return to work they should start proceeding to dismiss you on capability grounds or arrange a return t work in some graded return scheme agreed by OH and yourself. ita may be light duties or shorter hours but they cant do nothing and refuse to pay you,

[andyasw]

Just to let everyone know I am still awaiting a response from my employers HR department.

[andyasw]

Received a letter stating I would be on half pay from now on. @phoned HR but the person I need to speak to is on leave.

[Emmzzi]

Received a letter stating I would be on half pay from now on. @phoned HR but the person I need to speak to is on leave.

 

 

Dear company,

 

as you are aware my doctor has signed me on as fit to work

 

I have been waiting for X weeks at your request for an additional medical check. I am fit and fully able to resume duties, yet about to be put on half pay.

 

This feels discriminatory. Please confirm I am in fact on medical suspension at your request and will continue to receive full pay, or confirm I can recommence duties immediately.

 

Yours,

 

you.

[andyasw]

More news on this.

 

Today I received an email from HR. They say I am now on half pay because the Occupational Health doctor's recommendation that I have a psychological assessment, takes precedence over my GP who maintains I am medically fit to return to work on a phased return.

 

In addition it has been 17 days since my employer received the OH report and the recommendation but today they are finally making the actual referral.

 

I now feel compelled to seek legal advice.

[Emmzzi]

If they think you have a mental health concern going in heavy handed may simply confirm their prejudice. I would send the letter first....

[andyasw]

An update.

 

I'm on half pay while awaiting the psychological assessment suggested by the OH doctor.

 

My employer says it would be too risky for me to return to the workplace without back to work suggestions from the psychologist (I've only had a stroke six months ago!).

 

Despite my argument that this is medical suspension and my GP saying I'm fit to return, my employer has overruled my GP.

My union say I have no option than to go along with what's happening and see my GP to ask him to say I'm sick with work related stress..

Edited April 25, 2018 by dx100uk
spacing

[Emmzzi]

what good will seeing your GP do?

 

push hard, very day, for that OH appointment. Not having it is costing you.

[sangie5952]

If I might make an observation that had not been contributed hitherto, but which will cast some light on the subject,

 

whilst in no way suggesting that the employer is "morally correct", it should be pointed out that they are legally correct and the OP is laboring under a misapprehension that they have been signed as fit for work by their doctor.

According to what the OP says here, that is not what the GP has said.

 

"Fit for work" means returning 100% to your full job with all duties and hours. That is not what the GP said.

The for note must therefore say "may be fit for work on a phased return" or words to that effect.

 

That is ADVICE to the employer, so they are not refusing to accept the GP diagnosis or overruling it.

They are simply choosing not to comply with the advice.

 

In order for this to be a medical suspension, the employer must refuse permission to return to the FULL job in all its glory.

If the GP is willing to provide a fit note that says they are fully fit with no exceptions, then if the employer ignores that it becomes a medical suspension.

The unions hands are tied at the moment. The employer is legally correct.

Edited April 25, 2018 by sangie5952
spacing

[andyasw]

Thanks Sangie595 - my fit note says I'm to return on a phased basis though, as you say, my employer has overruled the GP's opinion and has a right to do so. However, the OH doctor who suggested a neuropsychological assessment following my stroke could be carried out concurrently with a return to the workplace. The employer has chosen not to do this.

[sangie5952]

And that's the problem - they have a right to do so.

The OH doctor also only gives advice.

 

I don't know if it's an agenda, or just being super cautious.

I don't have the information to make an informed guess about that.

 

What I can say is that the employer is acting within the law.

Nothing there to see ... Yet.

[andyasw]

Oddly enough my employer has now "allowed" a phased return prior to the completion of the neuropsycholoical assessment.

[Emmzzi]

excellent!

[andyasw]

Further update

 

For some strange reason my employer is now allowing me back on a phased basis prior to the neuropsychological assessment. I'm unsure what to think about this! At least my return will put me back on full pay.

[sangie5952]

Not to be the bearer of bad news,

but are you sure it does that?

 

Many employers did not pay full pay on a phased return

- they pay the rate that is earned,

so if you work half the week,

you get half the pay.

 

Many people don't notice that is the case because they have company sick pay,

and that makes up the balance.

 

In effect they are being paid part salary and pay sick pay.

 

If you have sick pay,

it amounts to the same pay so nobody notices or cares.

 

But since your company sick pay had run out,

it might not be full pay unless your terms specify that.

You need to check

- don't assume.

Edited May 6, 2018 by sangie5952
spacing

[andyasw]

I intend to represent myself at a tribunal if the initial intervention of ACAS fails. I'm seeking £1600 of deductions from my salary that my employer took and is a failure of adhering to their own policy.

 

I don't feel it's worth employing a legal representative and want to do it myself but would appreciate any tips.